© The Author (2009). Published by Oxford University Press. All rights reserved.
Human Rights and Development: a Comment on Challenges and Opportunities from a Legal Perspective*
World Bank
smcinerney{at}worldbank.org
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Abstract |
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 Top Abstract IntroductionThe Relationship Between Human...Development Frameworks and the...Legal Dimensions of Human...ConclusionsNotesReferences |
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Human rights and development continue to reflect a separate evolution. This article explores challenges which characterize the relationship between human rights and development from a legal perspective suggesting reasons why the tensions and disconnects endure. It makes an obvious, but nevertheless underappreciated point: human rights are the subject of binding international legal obligations and their relevance to development can be understood in light of this. The first part of this article addresses the challenges of integrating human rights in development and the divergences of discourse and policy frameworks. The consequences of these divergences are examined, including a lack of prominence for legal duties for human rights in development, the absence of a normative baseline against which to check development processes and outcomes, an overall lack of policy coherence and a potential undermining of human rights accountability. The article concludes by highlighting opportunities extant in the international human rights law framework. The legal challenges and opportunities are viewed as interconnected: obstacles confronted in integrating human rights in development may be to be rooted in a neglect of the normative and legal dimensions of human rights, which in turn point to opportunities for greater convergence and coherence around international legal frameworks.
Keywords: development, human rights, international law, obligations, policy, treaties
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Introduction |
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TopAbstractIntroductionThe Relationship Between Human...Development Frameworks and the...Legal Dimensions of Human...ConclusionsNotesReferences |
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Although recognition of some link between human rights and development is relatively well supported,1 there are ways in which the two persist in parallel and continue to reflect a separate evolution (UNDP, 2000). The relationship between human rights and development today is arguably defined more by its distinctions and disconnects than by its points of convergence, despite substantial evidence of the potential for mutual reinforcement (see, for example, Robinson and Alston 2005: 11–18). This article addresses the interface of human rights and development, focusing especially on the integration of human rights into development (although the reverse is alluded to in parts). It looks at the uneven recognition of human rights in development, particularly those which are directly relevant to or affected by development processes and outcomes. It aims to explore the potential relevance of human rights obligations as an overlooked but potentially worthwhile area to explore: in this, the focus is on obligations under treaties to which states have voluntarily acceded. As such, therefore, it sets out the parameters of the legal and policy questions to invite further exploration of the opportunities extant in the legal dimensions of human rights discourse and the potential for their future application in development.
Whatever the view taken of how closely human rights and development can and should be integrated, there can be no doubt that the two overlap substantially and a number of international frameworks such as those discussed in this article have begun to recognize the connections Sano, 2006. A premise of this article is that human rights could be integrated more systemically into development policy and practice, for three reasons. (1) They are intrinsically valuable in aiming to protect human dignity (e.g. jus cogens) and may be (negatively) affected by development so that development policy should identify ways to at a minimum meet the ‘do no harm’ threshold. (2) They are also instrumentally useful to enhance development processes, address certain types of social risk, ensure accountability (Darrow and Tomas 2005), and ultimately secure more equitable and sustainable development outcomes. (3) As a matter of public international law, human rights treaty obligations are legally binding States parties, and under custom bind all states other than persistent objectors: as such they should be respected in all contexts, including development.
While the majority of development policies and frameworks incorporate human rights concerns, many do so only implicitly: as a result, there may be value in examining the use of explicit human rights language and reliance on human rights obligations under international law. This article focuses on human rights as the subjects of binding international legal obligations, and a thorough a review of development policy, suggests that despite some incorporation of human rights in development policies, greater reliance on human rights law might provide one effective way to promote a more systematic, explicit and coherent approach to the integration of human rights in development. Human rights law offers one way of bridging the divergence between human rights and development,2 thereby enhancing coherence and human rights accountability, highlighting potential risk and preventing human rights harm.
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The Relationship Between Human Rights and Development |
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Convergence and divergence
The parameters of the overlap between human rights and development can be described as occurring at three different levels: (1) factual or substantive overlap, (2) convergent principles, and (3) obligations.3 This facilitates a more systematic approach to the interface between the two, and a more purposeful and transparent approach to the integration of human rights in development.
At a factual or substantive level, one can identify a confluence of human rights and development in the expanding range of functions, activities, and policies of development agencies and international financial institutions (IFIs) which overlap with the material provisions of human rights treaties, particularly those of the International Covenant on Economic, Social and Cultural Rights (ICESCR) but also those of the European Social Charter (1961), the American Convention on Human Rights (1969), the Protocol of San Salvador (1988), the African Charter of Human and Peoples' Rights (1981), and the European Union (EU) Charter of Fundamental Rights (2001). Development projects and programmes now cover the gamut of social and human development, much of which bear a direct relationship to core economic and social rights, and connect to a number of civil and political rights. Development institutions conduct a broad range of operations in the fields of health, education, labour and social security, children and youth, and food. They increasingly promote governance programs, anti-corruption strategies, as well as justice reform and rule of law activities. However, while there is much substantive congruence, this ‘factual overlap’ does not automatically align with all the objectives of such operations and those of ‘corresponding’ human rights treaties. Such activities may not be assumed to reflect or promote the realization of human rights, since few reference or mainstream human rights in their designs and objectives. Moreover, such activities will typically not address any impact on human rights – assessing whether they in fact support human rights or result in human rights harm.
But the convergence occurs also in less fortuitous ways – there is a documented overlap between human rights and development evident in the principles that are now prominent in the mainstream of development policy. Principles like participation and consultation,4 inclusion, cohesion, good governance, accountability and equality or equity, are well established in development discourse, but they also constitute the tenets of a rights-based approach to development with roots in human rights philosophy or conventions. This convergence and proximity underscores the question of what ‘value-added’ human rights discourse brings (Sano, 2006), and that the answer lies in the realm of obligations.
Equality provides a vivid example. Equality lies at the heart of the international human rights framework, underpinning entire instruments like the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), the Convention on the Rights of Persons with Disabilities (CRPD) and the Convention on the Elimination of All Forms of Racial Discrimination (CERD). Equality is defining feature of other treaties such as the International Covenant on Civil and Political Rights (ICCPR, Articles 2 and 3), ICESCR (Article 2.2) and the European Convention on Human Rights (ECHR, Article 14).5 Development discourse often embraces equality principles, sometimes finding its analogues in the principle of equity (see World Bank, 2006), sometimes in principles like inclusion, cohesion, or empowerment. Equality may also be transposed more implicitly through activities that foster inclusive development. This illustrates both the compatibility of development and human rights; but also the ways in which the development ‘equivalents’ fail to embrace human rights specifically. The convergence around principle remains a limited one, which, in this example, neglects structural or historical discrimination, and a more holistic and contextualized understanding of the factors that cause inequalities. It lacks the normative and intrinsic justification of equality founded in human rights law, and the concrete, enforceable standards it entails. Crucially, equity does not entail duties, while equality as a right generates obligations. A stronger integration of equality into development, including through the relevant legal standards or through the guidance of interpretations of competent treaty monitoring bodies, might strengthen development through fostering specificity, technical parameters and a solid normative foundation.
At the level of principle therefore, a concerted effort exists to integrate human rights into development policy and practice, which has enriched development discourse and improved development processes and outcomes through securing greater participation, consultation, and equity. However, the source of those principles, and their specific ramifications and interpretation are left to the discretion of institutions, so that their normative strength is left undetermined.
The third ‘level’ at which development and human rights intersect relates to duty or obligation. It is potentially the most important, but also the least established. It is common to encounter statements that assert a link between human rights and development, or claims that development either contributes to the realization of human rights or creates the conditions under which human rights can be realized. Such statements assume a positive correlation and do not address the critical dimension of duty which human rights necessarily entail, as well as the realm of legal obligations. An important distinguishing feature of human rights is the specification of obligations and duty. At a philosophical level ‘rights require correlative duties’ (Eide, 2001: 22), and without duty there is no right.6 In public international law terms, the obligations or duties may have their source in the three classic sources of international law: treaties, custom (including principles of jus cogens7 or obligations erga omnes8) and general principles of law.
While the overlaps at the first and second levels have been criticized as ‘mission creep’ or ‘rhetorical repackaging’ respectively (Uvin, 2004: 47), the same cannot be said of the third (obligations), which concerns a source of human rights that is independently undertaken and legally binding. In conclusion therefore, the relationship at a factual level evidences substantial overlap; at the level of principles, a certain compatibility and convergence, but at the level of obligations or duty, something more like divergence.
Reasons for the enduring disconnects and tensions
A number of reasons can be put forward to explain the enduring disconnects between human rights and development despite the evidence of convergence.
Legal or mandate constraints
For many development agencies human rights are understood to lie outside the legally established mandates of development institutions.9 The views are often based on particular interpretations of provisions on political prohibition in the constitutive instruments of development agencies.10 They assert that human rights are inherently political, and therefore, outside the permitted realm of considerations for such institutions, as well as outside their established mandate and competence. These views will sometimes be coupled with arguments that human rights are properly the purview of more openly political entities whose mandates provide explicitly for human rights. The narrow definition of institutional mandates may also rest on a vision of the specificity of tasks in a global context and the correct distribution of responsibility between international institutions.
Political resistance and value-based objections
Beyond the formal legal constraints, or particular definitions of mandates, human rights is not a concept around which there can be said to be consensus, and at an international level it is one of inescapable political sensitivity, with states fiercely protective of their human rights records and resistant to rankings, assessments and censure. For these reasons, human rights is widely perceived as a controversial subject in development agencies and IFIs, and viewed cautiously because of its divisive potential, including at the level of governing bodies. There may be widely differing viewpoints between members from the North and the South, or between donors and partners; but there may equally be variances between donors, and between partners. Some resist a current broadened understanding of human rights (possibly favouring particular domestic definitions or regional understandings, or an emphasis on one or other category of right). Others resist being dictated to on human rights through the lending instruments or development assistance generally, and many oppose what they perceive as double standards and hypocrisy when the dictates come from countries with economic power rather than exemplary human rights records. It is also worth acknowledging the disproportionate impact human rights-related conditionalities might have on certain member countries – that is, beyond the disproportionate impacts on borrowing countries (with no concomitant pressure on lenders), certain countries may be able to resist such human rights oversight by refusing to borrow from institutions that consider or impose human rights standards, while others, usually the poorest and least powerful, may not have that freedom.
Disciplines and approaches
The practice and policy that has evolved around development and human rights is governed by divergent discourses at least in part due to the predominance in each of different disciplines and methodologies (see Seymour and Pincus, 2008). At some fundamental level therefore, there is a perceived incompatibility between the approaches and language of each, making cohesion between them very challenging. Development has traditionally been the purview of economists, social scientists and sectoral or technical experts, while the human rights framework is predicated towards legal norms and rules, which have been largely drafted and interpreted by lawyers. Development institutions tend to rely on evidence-based approaches, while human rights organs operate from normative precepts. These may be difficult to reconcile, just as the ‘empirical’ case for respecting and protecting human rights may be difficult to prove and whatever empirical evidence exists is arguably equivocal or supportive of far narrower links (see, for example, Banerji and Ghanem, 1997; Barro, 1997; Isham et al., 1997). This has resulted in different discourses based on distinct disciplines, traditions and institutional cultures which enjoy no obvious affinity. Thus, development practitioners may approach issues in programmatic, forward-looking terms, predicated towards practical solutions, trade-offs and the rendering of technical assistance, whether at a country, sector or project level. Human rights practitioners likely start from a more explicitly normative baseline driven by principles like indivisibility and universality. They possibly adopt a retrospective outlook, from which responsibility for non-realization of human rights may be assigned and where poverty is viewed as a denial, or even violation of human rights.
Practical problems of bridging these disciplines arise in the absence of a solid evidence base demonstrating how rights-based approaches have succeeded, and where or how they have been successful in generating more sustainable development. This may link to practical difficulties of assessing, measuring and mainstreaming human rights, or to subtle forms of skepticism based on cultural relativism and the difficulties of identifying and promoting human rights norms in international contexts. There are also practical considerations related to how development institutions ‘do business’ and the ways in which human rights considerations, particularly where indexed to human rights legal standards, could be perceived as effecting an obstacle to disbursement and a burden on operations. Some development institutions may simply not have clear operational entry points in their policies and instruments to mainstream or integrate human rights considerations. This is compounded by the absence of operational entry points in their policies and instruments, and the existence of certain ingrained institutional imperatives and internal incentive structures.
Institutional arrangements
Cleavages in disciplines and approaches are sometimes reflected in institutional arrangements or the structures within governments. Human rights and development cooperation may be handled by separate teams within ministries of foreign affairs, or development cooperation may be managed by a separate aid agencies altogether. In the field this may be reflected in individual donors having human rights and policy dialogue conducted by their embassies and development programs by their development agencies. Similarly, participation in IFIs, multilaterals and development initiatives may be dealt with separately from engagement with international human rights bodies. Even within the United Nations, this is manifest in human rights matters related to treaties being separate from those related to the Millennium Development Goals (MDGs) or the right to development11 or in the UN General Assembly, with second and third standing committees handling sustainable development and human rights, respectively. Within development institutions, human rights may be recognized as an issue of cross-cutting relevance, but may lack a dedicated institutional home and staff responsible exclusively for it.
Consequences of the divergent discourse of development and human rights
The consequences of this varied relationship between human rights and development is an uneven recognition of human rights in development discourse, policy and operational frameworks and an underemphasizing of their binding nature. This may also result in lost opportunities for human rights treaties to positively inform development processes and programming and provide relevant input where specific rights are in issue in the planning or assessment of particular activities.
There may therefore be room for an approach that recognizes the mutual relevance of human rights to development activities, principles and policies, but that also recognizes the limits of the overlap. Certain human rights may be relevant to particular development processes and activities, but the relevance may not be generalized, nor involve all human rights. Moreover, human rights-related activities in development are not necessarily equivalent to realizing human rights and to argue for any axiomatic link between the two may be both inaccurate and unhelpful to both areas. Therefore, some clarity about the nature and extent of the relevance of human rights at the above-mentioned three levels (factual or substantive, converging principles, obligations), especially the third, might facilitate a more meaningful engagement, and ultimately encourage a more systematic and coherent approach to the integration of human rights in development. Recognition of the relevance of human rights obligations might ensure, to some extent, the place of human rights in development as rights for which states have assumed responsibility.
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Development Frameworks and the Incorporation of Human Rights |
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Development policy frameworks – convergence and divergence transposed
The uneven relationship between human rights and development described above, as well as the deeply entrenched reasons for its particular disconnects render the process of integrating human rights in development policy extremely difficult.12 While there are signs of greater recognition of the legal dimensions of human rights in development (Dañino, 2006: 30), the trend across policies of development agencies continues to evidence a ‘separability’. The tendency even among ‘bridging policies’ is to integrate human rights in principles, perspectives or considerations rather than obligations, and to leave them without specific anchorage in laws and treaties.13 Even policies that make reference to human rights instruments tend to do so in a preambular way, or as framing propositions to identify the general sources of human rights rather than as positive binding legal obligations under international law. In this way, human rights may become part of the general policy narrative, but rarely are the legal ramifications of specific instruments articulated in development policies that reference them, potentially limiting the degree to which human rights can in fact be integrated.
Frameworks that evidence the separation of development and human rights
The following discussion traces the connection between human rights and development at a policy level, identifying an evolution in the inclusion of legal dimensions in development policy frameworks and arguing that a stronger the legal dimension correlates with a more systematic integration of human rights in development can be.
Millennium Development Goals
At a macro level, development policies of multilaterals are governed by political goals and resultant policy frameworks that do not mention human rights or the relevant human rights treaty frameworks. The Millennium Development Goals (MDGs)14 are time-bound development targets that emanate from the 2000 UN Millennium Summit, along with the Millennium Declaration.15 The MDGs exemplify a framework in which, despite their deep relevance to each Goal, specific human rights are not mentioned in the Goals or their targets; this is to be contrasted with the provisions of the Millennium Declaration which contain multiple references to human rights.16 Global Monitoring17 is a monitoring framework that ‘focuses on how the world is doing in implementing the policies and actions for achieving the MDGs and related development outcomes. It is a framework for accountability in global development policy’,18 but despite its stated purpose as a framework for accountability it does not expressly refer to rights or obligations. The foregoing illustrates how in the view of some, ‘human rights have not yet played a significant role in supporting and influencing MDGs-based development planning’ (OHCHR 2008: vii).
At an institutional level, development agencies and IFIs have developed frameworks like Global Monitoring19 to advance the attainment of the MDGs. Others have developed polices to guide their work on poverty to meet the Goals; examples include the World Bank's Operational Policy 1.00 on Poverty Reduction,20 the United Nations Core Strategy on MDGs21 or the Asian Development Bank's Strategy 2020.22 Each reflects the disconnect between development policy and human rights frameworks, with few, if any, references to human rights, even those of direct relevance, and no express linkage to human rights treaties or obligations.
Despite the multilevel relevance of human rights to development, the shared focus on accountability and the substantive overlap of the MDGs with areas covered by human rights treaties like CEDAW, the Convention on the Rights of the Child (CRC) or the ICESCR, the MDGs and related frameworks do not incorporate human rights or the relevant treaty obligations. What may be lost in this is the opportunity to use the interpretations and findings of treaty monitoring bodies where particular rights are at issue in development activities, and thereby offer development agencies the relevant expertise to help minimize risk and enhance development effectiveness and sustainability. Such a cooperative and facilitative approach should not imply new, monitoring functions for IFIs in respect of human rights, but rather promote more coherent and effective development practice. Conversely, such an approach might facilitate the exchange of relevant information and improve the quality of data available to treaty bodies.
Aid effectiveness
The separability of frameworks is evident in relation to aid effectiveness, too. Following the 2002 Monterey Financing for Development Summit, aid agencies have forged ‘an operational consensus behind principles of aid harmonisation’ (Marshall, 2008: 96). This led to the Rome Declaration (2003) and the Paris Declaration (2005),23 which set out the commitments of multilateral and bilateral development institutions as well as partner institutions to harmonize ‘the policies procedures and practices of their institutions with those of partner country systems to improve the effectiveness of development assistance and thereby contribute to meeting the Millennium Development Goals.’24 The Paris Declaration confirmed five core principles: ownership, alignment, harmonization, managing for results and mutual accountability to improve the quality of aid and its impact on development. It promulgated a more detailed, operational framework based on actions in its 56 partnership commitments and 12 indicators. Despite the ways in which aid modalities can impact human rights and the ways in which human rights might inform the principles set out to govern the delivery of aid, the Rome and Paris Declarations remained silent on human rights and do not address the mutual relevance of human rights and aid effectiveness. In this they reflected a narrower, efficiency-based understanding of aid effectiveness concerned with the technical processes of aid delivery rather than its substantive ramifications or overarching goals. They also failed to recognize that ‘Aid is only effective if it achieves good development results, and good development results are not possible if gender inequalities persist, environmental damage is accepted, or human rights are abused’ (Robinson in OECD DAC HRTT 2008: 1).
This divergence persisted until the 2008 outcome document of the High-Level Forum in Accra, known as the Accra Agenda for Action (AAA). While the AAA notes respect for human rights as a cornerstone of development,25 and cites human rights in its provision for an expanded policy dialogue (Accra Agenda for Action, 2008: 13c), the question remains whether the neglect of human rights hitherto will impede the implementation of those commitments in the AAA.
Without including human rights explicitly in the principles, commitments and indicators of the Paris Declaration, or in its monitoring and evaluation frameworks (see Wood, et al. 2008), the impact of new aid delivery mechanisms on the realization of human rights cannot properly be assessed, nor can the positive potential of human rights for Paris Declaration principles be concretely explored. Moreover, the human rights context, including their legal context, may be useful to inform donors’ choices of aid instruments to help strengthen accountability and ensure that resources reach the poorest and least powerful.
Poverty reduction strategies
Poverty reduction strategies (PRSs)26 are a prerequisite for concessional assistance from the International Development Association (IDA) and the IMF, and debt relief under the Heavily Indebted Poor Countries (HPIC) initiative of the World Bank and the International Monetary Fund (IMF). Despite the overlap of human rights and poverty reduction strategies at a factual or even principled level, human rights are not the subject of concrete engagement within PRSs and do not influence their design in any discernable way,27 and is at best only implicitly incorporated in the strategies (Nankani et al., 2005: 475) or in the tools and documents that relate to these (e.g. World Bank Sourcebook on PRSPs28 or Bank-Fund Joint Staff Advisory Notes [JSAN]29). Occasional references to human rights exist in individual PRSs, but few if any specific references are made to international human rights treaties. Such references, unaccompanied by links to specific international human rights instruments, may result in human rights being incorporated only implicitly with little specific operational relevance. Some commentators have remarked on the broader role potentially fulfilled by PRSs. As comprehensive policy documents in many developing countries, PRSs may play an important role as vehicles for furthering the realization of human rights obligations of those countries (Tostensen 2008: 210). Under this view, PRSs, and the tools, documents, frameworks and results tables associated with them, could usefully include explicit references to relevant human rights treaties in an effort to support developing countries realize their human rights obligations as they pursue development.
Policy efforts to bridge development and human rights
While many development policies implicitly address human rights concerns and principles (e.g. World Bank safeguard policies), most prominent policy frameworks governing development and aid do not integrate human rights systematically. However, significant efforts to link human rights and development and aid do exist, including examples of policies that make explicit reference to the international human rights law framework. Whatever the particular view taken of whether the integration of human rights into development policy should take place, the approach to determining that question should be systematic and coherent.
The rise in prominence of human rights in development discourse is evident in a range of UN initiatives that link human rights and development, locating the source of human rights in the core UN human rights treaties. A rights-based approach is mandated as integral to the form and content of the UN's development policy,30 and is central to the approaches of both the UNDP (UNDP, 2001, 2005) and the OHCHR (OHCHR 2006a, b, c), including in relation to work on the MDGs (OHCHR, 2008a, b) and poverty (OHCHR 2004, 2006a, b, c). Many UN policy frameworks and statements make reference to international legal instruments as the source for human rights in development, or as an overall guiding framework for international cooperation. This was reflected in ‘Action 2’31 and again in the UN Secretary General's 2005 Report ‘In Larger Freedom’, which underscored the interrelationship of security, development and human rights.32 The 2003 UN Common Understanding on a Human Rights-Based Approach to Development Cooperation33 is even more explicit linking development cooperation, policies and technical assistance to the realization of human rights ‘as laid down in the Universal Declaration of Human Rights and other international instruments’. It also states that ‘human rights standards contained in, and principles derived from, the Universal Declaration of Human Rights and other international human rights instruments guide all development cooperation and programming in all sectors and phases of the programming process’.
More recently, the OECD DAC approved an Action-Oriented Policy Paper on Human Rights and Development (2007), which concluded:
The importance of human rights for development is widely recognized. Human rights and equitable, sustainable development are mutually reinforcing. Human rights have intrinsic value, and achieving them is seen as an objective in its own right. But human rights are also a critical factor for the long term sustainability of development.Consistent with establishing a general policy linkage, the Action-Oriented Policy Paper recalls the treaty base of international human rights in the ‘seven core international human rights treaties’ which establish the primary legal obligations of states parties (subject to the relevant reservations). The Paper's first principle sets as an objective the building of a shared understanding of the links between human rights obligations and development priorities through dialogue, confirming that partner governments' existing obligations should be the starting point for such dialogue (OECD DAC, 2007: paragraph 40 [1]).
In the context of aid effectiveness, efforts have been underway to highlight ‘the potential for the international human rights framework and the Paris Declaration to reinforce and benefit from one another’ (OECD DAC, 2007: paragraph 35).34 Human rights are widely recognized as a so-called cross-cutting policy issues within the meaning of the Paris Declaration,35 and it is therefore significant that the AAA (2008) notes respect for human rights as a cornerstone for achieving enduring impact on the lives and potential of poor women, men and children. It goes on to state that ‘[I]t is vital that all our policies address these issues in a more systematic and coherent way’ (AAA (2008) paragraph 3). Human rights are also referred to under the commitment to broaden country-level policy dialogue.36
Several bilateral aid agencies have policies with explicit human rights foundations with many highlighting the positive connection between human rights and development. While such policies articulate a range of objectives and principles to guide their development activities in order to promote or mainstream human rights, few do more than mention human rights obligations of either donors or partners (Netherlands Ministry of Foreign Affairs 2007). Prominent examples of this type of development policy framework include the 2006 Swiss Agency for Development and Cooperation Policy (SDC, 2006), which highlights the human rights content of the 2000 Millennium Declaration and the principle of building capacity to realize human rights obligations. Mainstreaming is a prevalent feature in this type of policy (see GTZ, 2004, 2005), and although many are unequivocal in affirming their human rights foundation, few highlight human rights obligations.
A few notable examples can be found that link human rights and development through an explicit application of human rights obligations under international treaties. The Austrian Development Cooperation Human Rights Policy Document (2006) locates the strength of the human rights framework precisely in its foundation in a legally based framework. At their strongest, these emphasize both partner and donor obligations and offer concrete operational entry points for their application in development policy frameworks. New Zealand's International Aid and Development Agency document, Human Rights Policy Statement (2002) and its Human Rights Implementation Plan of Action 2004–2009 confirm the role of donor and partner human rights treaty obligations in linking human rights and development. Another example emerges in Canadian legislation: the 2008 Official Development Accountability Act offers a definition of official development assistance and accountability, and contains a human rights clause stating that operations must be consistent with international human rights standards.37 In that case, the importance of human rights obligations to development policy is confirmed and reflected in domestic legislation.
The centrality of human rights to EU development cooperation draws explicitly on legal commitments that are both internal and external to the EU itself.38
Human rights is at the forefront of EU Development Cooperation with similar commitments to its humanitarian aid and Common Foreign and Security Policy. The policies flow from the legal obligations of its Member States, as well as from EU treaty provisions which recognize human rights as common values underpinning EU partnership and dialogue with third countries.39The EU has, since 1995, adopted ‘a distinct policy’ on human rights in its external relations with a ‘human rights clause’40 being introduced into all trade and development agreements with third countries or non-Members (Cremona, 1996; Reidel and Will, 1999), making the protection of human rights an essential element of the agreement.
The policies of the European Bank for Reconstruction and Development (EBRD) and the New Partnership for Africa's Development (NEPAD) illustrate the relevance of legal frameworks to link human rights and development activities through obligations under international law treaties in the former, and through connecting development and human rights institutions and processes in the latter. Consistent with the reference to human rights in the EBRD Articles of Agreement, its Environmental and Social Policy (2008: paragraph 9) makes direct reference to international conventions, including those related to human rights: ‘The EBRD will not knowingly finance projects that would contravene obligations under international treaties and agreements related to environmental protection, human rights and sustainable development as identified through project appraisal’. The EBRD policy also specifies that its country and sector strategies should summarize the principal environmental, human rights, gender equality and other social issues in the relevant country or sector, and set out the EBRD's proposals for taking these issues into account in its operations, where appropriate (paragraph 47). In Africa, the NEPAD Framework Document (2005) contains several references to human rights, as a foundation, objective and responsibility of the mechanism. The African Peer Review Mechanism (APRM),41 which operates as part of the NEPAD, links the final stage of its review to existing human rights mechanisms such as the African Commission on Human Rights (APRM, 2003).42 In this, the African-led policy supports macro-level coherence, and linkages between policy frameworks through human rights obligations (Heyns, 2005).
Conclusions regarding development frameworks and the incorporation of human rights
In general terms, the review of development policy reveals an uneven engagement with human rights and a lack of express reference to human rights obligations and the legal dimensions of human rights.
First, the discussion of divergence above reveals that in most development institutions or agencies human rights are not characterized in legal or obligatory terms. The lack of emphasis on the legal dimension of human rights in development may be contrasted with the prominence of international treaty obligations pertaining to well integrated issues like trade and environment which are explicitly provided for in the policies and guidance of several development institutions.43
Second, policies that recognize the interconnection of development policy and international law tend to take a more holistic view of the participation of states in various fora, and the interlinked nature of their duties in different international contexts. Policies that evidence a separation between human rights and development tend to neglect the legal dimension of the former and states may content to keep their treaty obligations under human rights instruments separate from the processes and policies that determine their contributions to, or allocations from, development expenditures. 710 Coherence and alignment between international law and policy potentially puts the actions of international actors under scrutiny by outside actors and processes, and may raise complex issues about the responsibility of states and international organizations.44 Notwithstanding this, there are signs that international law regimes and international development processes may usefully inform one another in areas where the overlap is strong and where rights under the former are directly at issue in the latter.
Third, even policies that bridge human rights and development are typically stronger at the level of discourse than they are in respect of assessment, monitoring and evaluation. This may offer a partial explanation for the lack of emphasis on the legal dimension of human rights: like other international treaties, human rights law brings with it a full range of rules, assessments and indicators, forcing questions of concrete application, monitoring and even enforcement. Taking account of human rights obligations could potentially lead to international development agencies having to consider their members’ obligations, and even their own human rights obligations under international law, in direct and concrete ways. From a different perspective, however, the signs of bridging in certain policies point to ways in which the work of international human rights bodies could be put to use in development activities, and where the accumulated wisdom of states’ experience as parties to international conventions could be brought to bear in particular circumstances where human rights have a direct and obvious bearing.
Fourth, while there is no causality argued that neglect of the law results in development policies’ failure to respect, protect and fulfill human rights, there may be some weight to the reverse argument that recognizing the importance of human rights law obligations would require positive human rights outcomes in development and efforts to safeguard against human rights harm where possible.
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Legal Dimensions of Human Rights in Development Policy – Challenges and Opportunities |
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The value of the law in safeguarding the place of human rights in development
This section builds on the argument that respect for human rights ought, in the words of the AAA (2008: paragraph 3), to ‘be clearly and systematically integrated into development’ by describing the potential relevance of the law and the role of legal accountability in that process.
Human rights law is founded on a set of stable, positive law commitments into which states have voluntarily entered, binding them to put in place domestic measures and legislation compatible with their treaty obligations. Human rights treaty obligations have the benefit of being bounded and voluntarily acceded to, with the specific parameters of states' obligations carefully negotiated, and circumscribed through reservation and derogation. In this context, the fact that human rights treaties, like all international treaties, are based on the consent of states is highly relevant since it challenges the assumption that in development their ‘application’ amounts to ‘imposition’. This approach avails of the natural limits of the treaty undertakings, thereby securing a clarity and legitimacy that approaches based on principles and values or even general principles of international law may not avail of as easily. Treaty-based obligations underpin the rights enshrined in the nine core human rights treaties concluded under the auspices of the United Nations,45 and the conventions concluded under the auspices of the ILO46, and regional organizations like the Council of Europe47 and the Organisation of American States (OAS).48 Human rights treaties are binding international agreements - like trade agreements or environment treaties, which enjoy greater recognition in development frameworks and have a direct bearing on development. Like these other types of multilateral treaties, human rights treaties enjoy high levels of ratification (Alston and Simma, 1992), but distinguish themselves in predating many and having long established processes and monitoring bodies, as well as a growing body of practical tools and indicators.49 The processes include those of UN Charter-based bodies (e.g. Human Rights Council and its Universal Periodic Review), UN human rights treaty monitoring bodies,50 as well as individual communications mechanisms, complaint procedures (Tomuschat, 2008: 193–229) and special procedures,51 all of which continue to develop a substantial body of expert knowledge.52
Despite the divisive politicization that plagues many human rights processes, the specific contribution of approaches that integrate human rights in development is that they make good practice and principles a matter of obligation. Without offering a legal base to that obligation, it is not clear whether human rights can deliver on the promise of this distinct contribution since the source of human rights or the duties remains unclear. Without a legal foundation, human rights commitments, values and principles are potentially subject to variance, and to some extent remain subjective.
The fact that human rights have not been more systematically integrated into development demands an examination of the approaches that have been used, in particular non-legal, social science and principled-based approaches. Several reasons may be offered for this, including the challenges of demonstrating the ‘value added’ of human rights to development, the dearth of empirical evidence connecting the two and a perception that human rights are somehow voluntary. A legal approach offers a clear rationale for the relevance of human rights to development, which is simply that it binds as a matter of law and is therefore obligatory. A legal approach also offers a sound basis for the principle of ‘do no harm’, and a risk-based outlook. It offers a concrete baseline for ensuring the respect of human rights and preventing any lowering of the standard of human rights enjoyment by development activities, which can also be conceived of as a form of due diligence, to protect against political and other forms of risk associated with human rights harms.
Normative baselines and the principle of ‘do no harm’
An outcome, related to the absence of a link between legal obligations and accountability is the absence of an explicit normative standard against which to assess development: ‘As such [human rights] represent agreed legal and moral standards against which development strategies, processes and results should be measured’ (OECD DAC HRTT, 2008: 1). A legal approach draws human rights beyond the ‘narrative’ of development policy, into the realm of practical application in development instruments and to concrete standards, rules, tools and indicators. However, without anchorage in specific, binding legal obligations such an application would appear difficult to undertake and a normative assessment improbably upheld.
Development policies and activities tend to be evaluated by individual institutions or agencies relative to internal accountability mechanisms or systems of evaluation which lack a normative element grounded in separate legal commitments. There are few external forms of assessments or evaluation,53 and even fewer openly normative assessments of development. A human rights legal standard potentially offers both, and does so based on a shared value system inculcated in international treaties to which most of the world's countries are party, and to which they are bound under international law. As the OECD DAC (2007: principle 1, paragraph 40 [1]) has noted, ‘A shared understanding of human rights issues between donor and partner countries is essential for the durability of aid partnerships and for the predictability and effectiveness of aid’.
Human rights law offers a normative baseline mandating non-regression and a principle of ‘do no harm’, and uses this baseline to strengthen and improve development practice. The incorporation of human rights legal standards mitigates human rights harms by providing a binding legal standard against which development policies, processes and outcomes can be assessed to (1) determine risk to human rights and whether development activities are likely to, or in fact, result in harm; (2) ensure that development activities in fact promote human rights or create the conditions for the realization of human rights (World Bank, 1998: 1); (3) prevent and redress unintended negative impacts on human rights in development processes and outcomes; (4) better understand the claim that development advances human rights; and (5) foster a deeper understanding of the relationship between the two fields. In relation to aid effectiveness, the OECD DAC Human Rights Task Team has written
[...] Human Rights and aid effectiveness framework should inform each other, rather than progressing on separate, disconnected tracks. Its principles of ‘do no harm’ and ensuring that the scaling up of aid is conducive to human rights, highlight two complementary dimensions of a key contribution that human rights can offer the aid effectiveness agenda (OECD DAC HRTT Human Rights and Aid Effectiveness, 2007).In concrete terms, the challenge presented by an absence of legally established normative baselines in development is potentially answered by human rights law. This might imply the incorporation of the relevant human rights legal standards in development policies and instruments, whether they address the level of country strategies54 or institutional assessment55 at a project level56, or analyze the likely effects and distributional impacts of certain interventions or policy reforms on various groups or stakeholders.57 Reliance on human rights treaties in such assessments (rather than principles, or other sources of international law) might provide the missing normative element but also provide a natural limitation on the range of permitted considerations and a legitimate source for standards. In practical terms, consideration of the reports and recommendations of treaty monitoring bodies, or the work of holders of special procedure mandates could help broaden the remit of considerations open to development processes in particular instances.
Policy coherence
As the connections between actions in the fields of human rights, development and aid effectiveness are increasingly understood as interconnected, their effective and coherent linkage is also being recognized as serving broader instrumental purposes, and as indispensable to ‘international policy coherence’ (Salomon, 2007: 106): ‘Effectively linking human rights and development policies is an important element in achieving policy coherence between development and wider foreign policy objectives’ (NZAID, 2002: 6).
Policy coherence fosters the sustainability of policies by preventing duplication and avoiding contradiction through promoting coherence across related subject matters and assessing the impacts of diverse areas of international policy on one another.58 It highlights complementarities between frameworks designed and participated in by the same states, including the most widely ratified international human rights instruments. Policy coherence is also indispensable to the realization of human rights.
In practice, policy coherence supports a focus on existing obligations, and applies to the institutional structures within which states, as traditional duty-bearers, operate so that the actions of states in various institutional structures and processes do not undermine human rights enjoyment. This may call for coherence across policies governing different issues, as well as coordination of a state's positions and participation in a number of international organizations and processes.59 It may also require that states assess the impact of policies in one area on other policy areas, including how actions in various fora impact human rights, requiring that states act with consistency and at a minimum, ‘do no harm’.
Human rights treaties respond to the challenge of policy coherence by providing an established legal platform around which to organize that coherence:
The fact that both donors and partner countries have ratified the international human rights treaties provides a uniquely valuable reference point for harmonisation efforts. A mutually agreed, universal normative framework already exists, supported not only by political commitment, but also by the force of legal obligation. As well, at the operational level, there is growing convergence on the integration of human rights in development. (OECD DAC HRTT 2007: 3)Greater reliance on human rights treaty obligations in development and aid harmonisation efforts might also promote coherence between states since these represent shared legal commitments into which states have freely entered and which apply equally to donors and partners. The equal applicability of these commitments offers the international human rights framework a special form of legitimacy and a unique value in the context of development. Such coherence could support the general objectives of the Paris Declaration and the Accra Agenda for Action, with their goals of maximizing efficiency, reducing duplication, inconsistencies and transaction costs. Such coherence is also supportive of the principles of alignment, country ownership,60 strengthened capacity, and ultimately of sustainability.
In practical terms the pursuit of such coherence through reliance on human rights treaties would require legal assessments to be undertaken to gain a comprehensive view of the legal obligations potentially in play in a given context. It might also require the development of a strategic view of the roles and responsibilities of international actors in respect of these obligations, including any potential applications to themselves, and might call for some process of resolution in the event of conflict or inconsistencies, including possibly establishing a hierarchy of legal obligations. Were such policy coherence to be pursued with respect to human rights, some basic cooperation between the key international actors would be necessary, and the mutual informing of guiding strategies indispensable.
A more unified accountability framework
Another significant consequence of the separation of these frameworks is the absence of specific human rights accountability in development policy and activities (Bradlow, 1996; Clark, 2002; Darrow, 2003; Skogly, 2001). It is argued that accountability for human rights cannot properly be upheld because human rights obligations are not factored into development policies, such that states—as donors or clients—can pursue development activities without any systematic assessments of their consequences in human rights terms and without there being any effective legal recourse where those consequences are negative. The absence of legal duties in development policy frameworks undermines the possibility of the key contribution of human rights – accountability – being upheld in the context of development with respect to both process and outcome (Twomey, 2007).
This is so despite the increased prominence of accountability in the content and emphasis of development or aid policies discussed above.61 While maintaining separate accountability frameworks for different areas of international cooperation may be appropriate, there are ways in which extensive substantive overlaps and the existence of several disconnected frameworks of accountability is in itself potentially problematic, creating obvious risks of duplication and inconsistency.62 Moreover, the proliferation of overlapping frameworks, with separate accountability mechanisms, in an era of heightened emphasis on harmonization, alignment and coherence is somewhat perplexing.
Second, while accountability frameworks such as those governing the Paris Declaration63 fulfill essential functions, and are not a priori inconsistent with human rights accountability, their parallel existence, without any corresponding recognition of human rights obligations or impacts presents a risk to the latter. The Paris Declaration constitutes a mechanism through which donors and partners are held mutually accountable: these same countries are accountable for human rights that are directly relevant to, and potentially impacted by, harmonization efforts.
Third, the accountability propounded through development frameworks is not equivalent to the legal accountability upheld through human rights law. Rather, it is an accountability centered on principles, political commitments and policy frameworks rather than specific, binding legal obligations under public international law. One may argue that the human rights accountability lacuna is compounded rather than mitigated by the existence of various forms of non-legal accountability mechanisms in development contexts. These are not a substitute for human rights accountability, and without recognizing and complementing it, they risk undermining it.
That complementarity could be promoted if the processes connected with human rights treaties could be connected in some way to development processes, and if human rights treaty obligations could become a part of existing accountability mechanisms, whether through policy frameworks or complaints mechanisms. Human rights law norms could deepen and ground existing accountability mechanisms and help fill some of the perceived accountability gaps in both horizontal (state to state) and vertical (state to citizen) relationships.
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This article has sought to underscore some obvious but nevertheless overlooked strengths of the human rights law framework in the context of development. While it does not argue for human rights conditionalities it aims to highlight in a preliminary way, some of the opportunities presented by the international human rights framework as a shared, stable and clear structure of international treaties with substantial and, in some cases near universal ratification. These offer a legal and normative baseline founded on the voluntarily undertaken commitments of states, which bind them under public international law and which may support them in the pursuit of sustainable development.
In summary, for development practitioners aiming to promote the integration of human rights more systematically into development, this article proposes that the international law framework offers one way to do this by providing a binding and legitimate starting point to establish the connections, and a body of rules, principles, indicators and processes to assist the integration of human rights in development. Recognition of the treaty base of international human rights in the context of development refocuses attention on the fact that (1) human rights are not voluntary or just rhetorical, they are the subject of legally binding commitments; (2) human rights may add value and fundamentally change how development is pursued, what it pursues and what it can achieve; (3) realizing human rights may be different from undertaking good development practice – the former is done out of legal obligation, the latter might not be; (4) human rights are intrinsically valuable and therefore worth protecting in development; (5) human rights can play an instrumental role in fostering sustainable development through adverting risk and focusing on ways in which development can support the realization of human rights. It is submitted that the failure to recognize the legal dimensions of human rights may indeed be connected with the wider failure to recognize the distinct value of human rights for development.
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This article represents the author's personal views and should not be attributed to the institution for which she works. I am indebted to Nathan Lankford, Charles Di Leva, Saskia Fronabarger, Maurizio Ragazzi and Jordí Agusti-Panareda for comments on earlier versions of this article. Responsibility for errors or omissions remains my own. This work is dedicated to Kristina Celich.
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* This article reflects the personal views of the author and should not be attributed to the World Bank.
1 An early linkage can be found in the recognition of the right to development, see for example, Proclamation of Tehran (1968) http://www.unhchr.ch/html/menu3/b/b_tehern.htm. See also the Declaration on the Right to Development, Resolution 41/117 / 128 (4 December 1986).
2 For an analogous discussion linking trade and labor standards, see Barry and Reddy (2006: 548).
3 This is the typology used in McInerney-Lankford (2007: 459).
4 Participation and consultation are central to the policies and practice of many development agencies; see e.g. the World Bank Operational Policies on Environmental Assessment (OP 4.01), Indigenous Peoples (OP 4.20), Forests (OP 4.36) and Cultural Property (OP 4.11).
5 For a comprehensive discussion of international law provisions on equality and protection against discrimination, see McKean (1983) and Fredman (2001).
6 On the ‘correlativity of rights and duties’, see Mayo (1967: 68, 72).
7 Jus cogens rules are those peremptory norms from which no derogation is permitted. They protect the overriding interests and values of the international community of states, and due to their affinity with natural law, are understood to include human rights.
8 The International Court of Justice (ICJ) recognized obligations erga omnes in the Barcelona Traction, Light and Power Co. Ltd. Case, [1970] I.C.J. Rep. 3. There are certain international obligations which, by virtue of the importance of the rights involved, all states can be held to have a legal interest in protecting. These include rules concerning the basic rights of the human person.
9 See Articles III, Section 5, and Article IV, Section 10 of the International Bank for Reconstruction and Development (IBRD) Articles of Agreement; and Shihata (1991: 761).
10 See Shihata (2000: 219). Under such a view, human rights considerations fall outside provisions barring political considerations and amount to interference in the domestic affairs of members. One may argue that such provisions should be interpreted in light of contemporary international law, which balances a protection of sovereignty with respect for principles that underpin the international legal order and the Charter of the United Nations, including human rights.
11 For example, the Office of the High Commissioner for Human Rights (OHCHR) is organized in four different branches, under which development and treaties are separate.
12 Organisation for Economic Co-operation and Development (OECD), Development Assistance Committee (DAC) Human Rights Task Team (2006: 69–89). Also see the earlier, Hemlich and Borghese (1998).
13 See, for example, UN Development Programme (UNDP) (2001: 2) describing an rights-based approach (RBA) as one that is based on the ‘values, standards and principles’ of the UN Charter and Universal Declaration of Human Rights (UDHR) and subsequently legally binding human rights conventions'.
14 http://www.un.org/millenniumgoals/
15 http://www.un.org/millennium/
16 OHCHR (2008a, b: 3) traces the links between human rights and the MDGs but also underscores the broad disconnect between the two frameworks. Also see Alston (2005).
17 Global Monitoring emanated from a request of the Development Committee at the 2002 Bank-Fund Annual Meetings which called for determined implementation of the agreed strategies and partnerships for reaching the MDGs and requested a framework by which to monitor progress on the underlying policies and actions while recognizing the role of the UN in MDG monitoring.
18 Another relevant framework that predates the MDGs, is the Comprehensive Development Framework, available at http://go.worldbank.org/O3CN35INY0.
19 http://go.worldbank.org/UVQMEYED00
20 World Bank Operational Policy O.P. 1.00 on Poverty Reduction – it is ‘consistent with the World Development Report 2000/2001 on Attacking Poverty, and with the multidimensional vision of poverty reduction contained in the MDGs and the Bank's commitment to accelerating progress towards these goals’. See: http://go.worldbank.org/0K895K0TV0
21 This contains only two references to human rights, see: http://www.undp.org/mdg/core_strategy.pdf
22 The Long-Term Strategic Framework of the Asian Development Bank 2008-2020, see http://www.adb.org/documents/Policies/Strategy2020/Strategy2020-print.pdf or Fighting Poverty in Asia and the Pacific: The Poverty Reduction Strategy, see http://www.adb.org/Documents/Policies/Poverty_Reduction/Poverty_Policy.pdf
23 http://www.oecd.org/dataoecd/11/41/34428351.pdf
24 Rome Declaration on Aid Harmonisation (2002), http://www.oecd.org/dataoecd/54/50/31451637.pdf
25 Paragraph 3 states: ‘Gender equality, respect for human rights, and environmental sustainability are cornerstones for achieving enduring impact on the lives and potential of poor women, men, and children. It is vital that all our policies address these issues in a more systematic and coherent way’.
26 http://go.worldbank.org/FXXJK3VEW0. The current nomenclature favors PRS rather than PRSP, since most individual country strategies go beyond just fulfilling the requirement for a PRSP and include a country's broader plan to reduce poverty.
27 For a critical review of PRSPs from a human rights perspective, see Stewart and Wong (2005: 447). They also ask whether the mention of human rights in PRSP would materially alter their conclusions, since the risk would be that human rights would simply remain confined to the language without any consequence in reality.
28 http://go.worldbank.org/3I8LYLXO – ‘The Sourcebook is a guide to assist countries in the development and strengthening of poverty reduction strategies. The Sourcebook reflects the thinking and practices associated with the Comprehensive Development Framework, as well as lessons emerging from the World Development Report on Poverty, and good international practices related to poverty reduction’.
29 http://povlibrary.worldbank.org/library/subtopic/3478/.
30 ‘All UNCTs [UN Country Teams] must use a human rights-based approach (HRBA) [...] [A HRBA] puts the international human rights entitlements and claims of the people and the corresponding obligations of the State in the centre of the national development debate, and it clarifies the purpose of capacity development’. http://www.undg.org/index.cfm?P=221
31 Report of the UN Secretary-General, Strengthening of the United Nations: An Agenda for Further Change (A/57/387 of 9 September 2002) from which the strengthening and mainstreaming of human rights in the UN has come to be known as ‘Action 2’. ‘Action 2’ related to Strengthening UN Support for the Promotion and Protection of Human Rights Worldwide. http://www.un.org/events/action2/. See further: Action 2 Interagency Plan of Action - Strengthening Human Rights-related UN Action at Country Level (2003) adopted by UN Development Group, Executive Committee on Humanitarian Assistance and OHCHR pursuant to the Secretary-General's report.
32 Report of the UN Secretary-General (Kofi Annan), In Larger Freedom: Towards Development, Security and Human Rights for All (2005) at http://www.un.org/largerfreedom/
33 http://portal.unesco.org/shs/en/ev.php-URL_ID=7733&URL_DO=DO_TOPIC&URL_SECTION=201.html
34 In 2007, an influential DAC workshop was held in Dublin, Workshop on Aid Effectiveness in Practice: Applying the Paris Declaration to Advancing Gender Equality, Environmental Sustainability and Human Rights, Dublin (26–27 March 2007). A follow-up workshop was held in London on Strengthening the Development Results and Impacts of the Paris Declaration through Work on Gender Equality, Social Exclusion and Human Rights (12–13 March 2008).
35 Paragraph 42 of the Paris Declaration provides ‘Similar harmonisation efforts are also needed on other cross-cutting issues, such as gender equality and other thematic issues including those financed by dedicated funds’.
36 13 (c) of the AAA states: ‘Developing countries and donors will ensure that their respective development policies and programmes are designed and implemented in ways consistent with their agreed international commitments on gender equality, human rights, disability and environmental sustainability’ (Accra, 2008).
37 Canada 2008 Official Development Assistance Accountability Act which came into force on 28 June 2008; C.17 O-2.8. It states in section 4. (1) that ‘Official development assistance may be provided only if the competent minister is of the opinion that it (a) contributes to poverty reduction; (b) takes into account the perspectives of the poor; and (c) is consistent with international human rights standards’.
38 http://www.ihrnetwork.org/eu-development-policies_215.htm. Internal commitments are based on the Treaty on European Union, and were confirmed in the Treaty of Amsterdam and the EU Charter of Fundamental Rights and the European Instrument for Democratization and Human Rights (2006).
39 http://www.ihrnetwork.org/eu-development-policies_215.htm
40 ‘The essential element’ of an agreement, or ‘human rights essential element clause’. See EU Council Decision 7255/95 Human Rights Clauses in Community Agreements with Non-Member Countries, Brussels, 24 May 1995. Also the Commission Communication on the Inclusion of Respect for Democratic Principles and Human Rights in Agreements between the Community and Third Countries COM (95) 216 of 23 May 1995.
41 An important accountability related mechanism to the NEPAD, the APRM is a mutually agreed instrument voluntarily acceded to by member states of the African Union (AU) as an African self-monitoring mechanism. The APRM is central to the NEPAD process for the socio-economic development of Africa.
42 APRM base document Article 25 states: ‘Six months after the report has been considered by the Heads of State and Government of the participating member countries, it should be formally and publicly tabled in key regional and sub-regional structures such as the Pan-African Parliament, the African Commission on Human and Peoples’ Rights, the envisaged Peace and Security Council and the Economic, Social and Cultural Council (ECOSOCC) of the African Union'. Available at: http://www.chr.up.ac.za/hr_docs/aprm/docs/book3.pdf
43 On trade, see Croome (1996: preface). On international environmental treaties, see the World Bank O.P. 4.01 on Environmental Assessment (1999) which states: ‘EA considers [...] obligations of the country, pertaining to project activities, under relevant international environmental treaties and agreements. The Bank does not finance project activities that would contravene such obligations, as identified during the EA’.
44 See H.G. Schermers and N.M. Blokker, International Institutional Law: Unity within Diversity 4th ed. Martinus Nijhoff 
1856–1859.
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http://www2.ohchr.org/english/law/. This table does not include the relevant Optional Protocols to both the ICCPR and the ICESCR.
46 For the full ILOLEX database of ILO conventions, see http://www.ilo.org/ilolex/english/newratframeE.htm, and see especially the eight conventions that underpin the core labor standards: Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87); Right to Organize and Collective Bargaining Convention, 1949 (No. 98); Forced Labour Convention, 1930 (No. 29); Abolition of Forced Labour Convention, 1957 (No. 105); Discrimination (Employment and Occupation) Convention, 1958 (No. 111); Equal Remuneration Convention, 1951 (No. 100); Minimum Age Convention, 1973 (No. 138); Worst Forms of Child Labour Convention, 1999 (No. 182).
47 European Convention on Human Rights and Fundamental Freedoms (1950).
48 American Convention on Human Rights (1969).
49 OHCHR work on human rights indicators from 2006 to 2008, see e.g. Report on Indicators for Monitoring Compliance with International Human Rights Instruments – Summary HRI/MC/ 2006/7 and Report on Indicators for Promoting and Monitoring the Implementation of Human Rights HRI/MC/2008/3.
50 These include the following:
- Human Rights Committee (CCPR)
- Committee on Economic, Social and Cultural Rights (CESCR)
- Committee on the Elimination of Racial Discrimination (CERD)
- Committee on the Elimination of Discrimination Against Women (CEDAW)
- Committee Against Torture (CAT) and Optional Protocol to the Convention against Torture (OPCAT) – Subcommittee on Prevention of Torture
- Committee on the Rights of the Child (CRC)
- Committee on Migrant Workers (CMW)
- Committee on the Rights of Persons with Disabilities (CRPD).
51 http://www2.ohchr.org/english/bodies/chr/special/index.htm. Also see Kedzia (2003: 3).
52 See, for instance, the work of the Committee on Economic, Social and Cultural Rights, including its general comments, and concluding observations and comments, at: http://www1.umn.edu/humanrts/esc/esc-page.htm
53 Yet see OECD DAC Peer Review which reviews individual members' policies and efforts in the area of development co-operation. Each member is critically examined approximately once every four years; this way five or six programmes are examined annually. (www.oecd.org/dac/peerreviews). e.g. UNDP (2005) http://www.undp.org/eo/documents/DAC-PeerReview.pdf
54 For example: United Nations Development Assistance Frameworks (UNDAF), World Bank Country Assistance Strategies (CAS), PRS or Joint Assistance Strategies (JAS).
55 For example, UN Common Country Assessments (CCA), or World Bank Country Policy Institutional Assessments (CPIA).
56 For example, social or environmental assessments or human rights tools.
57 For example, the World Bank's Country Policy and Institutional Assessment. http://web.worldbank.org/WBSITE/EXTERNAL/TOPICS/EXTPOVERTY/EXTPSIA/0,,contentMDK:20454976~menuPK: 1107972~pagePK:148956~piPK:216618~theSitePK:490130,00.html
58 http://www.oecd.org/document/54/0,2340,en_2649_33721_35320054_1_1_1_1,00.html. This idea has relevance also to efforts in the UN human rights machinery to enhance coherence and harmonization between treaty bodies. See the UN Report of the Working Group on Harmonisation of Working Methods of Treaty Bodies, 9 January 2007.
59 The definition provided by DFID captures these distinct dimensions: ‘Policy coherence for development is achieved when policies across a range of issues (for example trade, migration, security) support, or at least do not undermine, the attainment of development objectives. There are two types of policy coherence of particular importance to DFID: coherence across UK government policies; and coherence within multilateral institutions such as the European Commission (EU)’. http://www.dfid.gov.uk/mdg/aid-effectiveness/policy-coherence.asp
60 Rome Declaration (2003: paragraph 3); Paris Declaration (2005) principles of ownership (paragraphs 14–15); and Alignment (paragraphs 16–31).
61 In addition, accountability mechanisms or compliance functions that operate within development institutions may have an important bearing on the discussion of accountability, including human rights accountability. For an overview, see Bradlow (2005).
62 One may argue by analogy from the aid effectiveness context that the multiplicity of monitoring frameworks undermines accountability and effectiveness. Rome Declaration (2003: paragraph 2).
63 Paris Declaration (2005: paragraphs 47–50) principle of mutual accountability: ‘donors and partners are accountable for development results’. At: http://www.oecd.org/document/18/0,2340,en_2649_3236398_35401554_1_1_1_1,00.html
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References |
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|
TopAbstractIntroductionThe Relationship Between Human...Development Frameworks and the...Legal Dimensions of Human...ConclusionsNotesReferences |
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-
Accra Agenda for Action (AAA). (2008) Available at http://siteresources.worldbank.org/ACCRAEXT/Resources/ 4700790-1217425866038/AAA-4-SEPTEMBER-FINAL-16h00.pdf (retrieved 23 July 2008).
African Peer Review Mechanism (APRM). (2003) Base Document. 2003. Available at http://www.chr.up.ac.za/hr_docs/aprm/docs/book3.pdf (retrieved 23 July 2008).
Ahrens H. Human Rights in International Cooperation (2004) Eschborn: Deutsche Gesellschaft für Technische Zusammenarbeit. Available at http://www2.gtz.de/dokumente/bib/05-0884.pdf (retrieved 23 July 2008).
Alston P. Ships Passing in the Night: The Current State of the Human Rights and Development Debate seen through the Lens of the Millennium Development Goals. Human Rights Quarterly (2005) 27(3):755. 814.[CrossRef][Web of Science]
Annan K. Strengthening of the United Nations: An Agenda for Further Change A/57/387. (2002) dated 9 September 2002. Available at http://www.unhchr.ch/huridocda/huridoca.nsf/(Symbol)/A.57.387.En?Opendocument (retrieved 23 July 2008).
Annan K. In Larger Freedom: Towards Development, Security and Human Rights for All. In: Law and Practice of the United Nations – Documents and Commentary—Chesterman S., Franck T., Malone D., eds. (2007) USA: Oxford University Press. Reproduced in.
Asian Development Bank. Fighting Poverty in Asia and the Pacific: The Poverty Reduction Strategy. (2004) Available at http://www.adb.org/Documents/Policies/Poverty_Reduction/Poverty_Policy.pdf (retrieved 23 July 2008).
Asian Development Bank. Long-Term Strategic Framework of the Asian Development Bank: 2008-2020. (2008) Available at http://www.adb.org/documents/Policies/Strategy2020/Strategy2020-print.pdf (retrieved 23 July 2008).
Austrian Development Cooperation. Human Rights Policy Document. (2006) Available at http://www.ada.gv.at/fileadmin/user_upload/ADA/media/2-Aussenpolitik_Zentrale/ OEZA_ab_Februar_2006/2379_policy_document_human_rights_web.pdf (retrieved 23 July 2008).
Banerji A., Ghanem H. Does the Type of Political Regime Matter for Trade and Labor Market Policies? World Bank Economic Review (1997) 11(2):171–194.
Barro R.J. Determinants of Economic Growth: A Cross-Country Empirical Study (1997) Cambridge, MA: MIT Press.
Barry C., Reddy S. International Trade and Labor Standards: A Proposal for Linkage. Cornell International Law Journal (2006) 39:548.
Bradlow D. The World Bank, the IMF and Human Rights. Transnational Law and Contemporary Problems (1996) 6(1):48.
Bradlow D. Private Complainants and International Organizations: a Comparative Study of Independent Inspection Mechanisms in International Financial Institutions. Georgetown Journal of International Law (2005) 36(2):403–491.
Clark D. The World Bank and Human Rights: The Need for Greater Accountability. Harvard Human Rights Journal (2002) 15:205.
Cremona M. Human Rights and Democracy Clauses in the EC's Trade Agreements. In: The European Union and World Trade Law after the GATT Uruguay Round.—Emiliou N., O'Keefe D., eds. (1996) London: Wiley.
Croome J. WTO Obligations and Bank Policy Advice: Keeping up with Post-Uruguay Round Rule (1996) Washington, DC: World Bank, International Trade Division.
Dañino R. The Legal Aspects of the World Bank's Work on Human Rights. Development Outreach (2006) 8(2):30–32.
Darrow M. Between Light and Shadow: The World Bank, the IMF and International Human Rights Law (2003) Oxford: Hart Publishing.
Darrow M., Tomas A. Power, Capture, and Conflict: A Call for Human Rights Accountability in Development Cooperation. Human Rights Quarterly (2005) 27(2):471–538.[CrossRef][Web of Science]
Donnelly J. Human Rights and Development: Complementary or Competing Concerns. World Politics (1984) 36(2):255.[CrossRef]
Donnelly J. Human Rights, Democracy, and Development. Human Rights Quarterly (1991) 21(3):629.
Eide A. Economic, Social and Cultural Rights as Human Rights. In: Economic, Social and Cultural Rights—Eide A., Krause C., Rosas A., eds. (2001) Dordrecht: Martinus Nijhoff Publishers.
European Bank for Reconstruction and Development (EBRD). Environmental and Social Policy. (2008) as approved by the EBRD Board on 12 May 2008. Available at http://www.ebrd.com/about/policies/enviro/policy/2008policy.pdf (retrieved 23 July 2008).
European Union Commission. The Inclusion of Respect for Democratic Principles and Human Rights in Agreements between the Community and Third Countries. (1995) COM (95) 216 of 23 May 1995. Available at http://www.eulib.com/documents/com95_216_en.pdf (retrieved 23 July 2008).
European Union Council Decision 7255/95 Human Rights Clauses in Community Agreements with Non-Member Countries, 24 May 1995: Brussels.
Fredman S. Discrimination Law (2001) Oxford: Oxford University Press.
Helmich H., Borghese E., eds. Human Rights in Development Co-Operation (1998) Utrecht. SIM Special No. 22.
Heyns C., ed. Compendium of Key Human Rights Documents of the African Union (2005) Pretoria: Pretoria University Law Press.
International Finance Corporation (IFC). Performance Standard 1: Social and Environmental Assessment and Management System. (2006) dated 30 April 2006. Available at http://www.ifc.org/ifcext/sustainability.nsf/Content/PerformanceStandards (retrieved 23 July 2008).
Isham J., Kaufmann D., Pritchett L.H. Civil Liberties, Democracy and the Performance of Government Projects. World Bank Economic Review (1997) 11(2):219.
Kedzia Z. Mechanisms to Protect and Promote Human Rights. In: Human Rights: International Protection, Monitoring and Enforcement—Symonides J., ed. (2003) Ashgate: UNESCO. 3.
Kirkemann Hansen J., Sano H-O. The Implications and Value Added of a Rights-Based Approach. In: Development as a Human Right:Legal, Political and Economic Dimensions—Andreassen B.A., Marks S.P., eds. (2006) Harvard University Press. 2006.
Marshall K. The World Bank: From Reconstruction to Development to Equity (2008) Portland: Routledge Global Institutions. 96.
Mayo B. What are Human Rights? In: Political Theory and the Rights of Man.—Raphael D.D., ed. (1967) Bloomington: Indiana University Press.
McInerney-Lankford S. Human Rights and Development: Some Institutional Perspectives. Netherlands Quarterly of Human Rights (2007) 25(3):459.[Web of Science]
McKean W. Equality and Discrimination under International Law (1983) Oxford: Oxford University Press.
Nankani G., Page J., Judge L. Human Rights and Poverty Reduction Strategies: Moving towards Convergence? In: Human Rights and Development: Towards Mutual Reinforcement—Robinson M., Alston P., eds. (2005) USA: Oxford University Press.
Netherlands Ministry of Foreign Affairs. Human Rights Strategy: Human Dignity for All (2007) Available at http://www.minbuza.nl/en/themes,human-rights (retrieved 23 July 2008).
New Partnership for Africa's Development (NEPAD) Framework Document. (2001) Available at http://www.nepad.org/2005/files/documents/inbrief.pdf.
New Zealand Agency for International Development (NZAID). Human Rights Policy. (2002) Available at http://www.nzaid.govt.nz/library/docs/nzaid-human-rights-policy.pdf (retrieved 23 July 2008).
Office of the High Commissioner for Human Rights (OHCHR). Human Rights and Poverty Reduction: A Conceptual Framework (2004) New York and Geneva: United Nations. Available at http://www.unhchr.ch/html/menu6/2/povertyE.pdf (retrieved 23 July 2008).
Office of the High Commissioner for Human Rights (OHCHR). Report on Indicators for Monitoring Compliance with International Human Rights Instruments HRI/MC/ 2006/7. (2006) a. dated 11 May 2006. Available at http://www.unhchr.ch/tbs/doc.nsf/0/c8603b9f3a39579ac1257186003898c2/$FILE/G0641960.pdf (retrieved 23 July 2008).
Office of the High Commissioner for Human Rights (OHCHR). Frequently Asked Questions on a Rights-Based Approach to Development (2006) b. New York and Geneva: United Nations. Available at http://www.ohchr.org/Documents/Publications/FAQen.pdf. See also http://www.unhchr.ch/development/approaches.html (retrieved 23 July 2008).
Office of the High Commissioner for Human Rights (OHCHR). Guidelines for A Human Rights Approach to Poverty Reduction (2006) c. New York and Geneva: United Nations.
Office of the High Commissioner for Human Rights (OHCHR). Report on Indicators for Promoting and Monitoring the Implementation of Human Rights HRI/MC/2008/3. (2008) a. dated 6 June 2008. Available at http://www2.ohchr.org/english/bodies/icm-mc/docs/HRI.MC.2008.3EN.pdf (retrieved 23 July 2008).
Office of the High Commissioner for Human Rights (OHCHR). Claiming the Millennium Development Goals: A Human Rights Approach (2008) b. New York and Geneva: United Nations. Available at http://www2.ohchr.org/SPdocs/Claiming_MDGs_en.pdf (retrieved 23 July 2008).
Organisation for Economic Co-Operation and Development (OECD) Development Assistance Committee (DAC). Integrating Human Rights into Development: Donor Approaches, Experiences and Challenges (2006) Paris: OECD Publishing. (Based on a study by L-H Piron and T. O'Neil).
Organisation for Economic Co-Operation and Development (OECD) Development Assistance Committee (DAC). Action Oriented Policy Paper on Human Rights and Development (2007) a. Paris: OECD Publishing. Available at http://www.oecd.org/dataoecd/50/7/39350774.pdf (retrieved 23 July 2008).
Organisation for Economic Co-Operation and Development (OECD) Development Assistance Committee (DAC) Human Rights Task Team (HRTT). Human Rights and Aid Effectiveness DAC Update (2007) b. Paris: OECD Publishing. Available at http://www.oecd.org/dataoecd/15/12/38713028.pdf (retrieved 23 July 2008).
Organisation for Economic Co-Operation and Development (OECD) Development Assistance Committee (DAC) Human Rights Task Team (HRTT). Human Rights and Aid Effectiveness: Key Actions to Improve Inter-linkages (2008) Paris: OECD Publishing. 1. Available at http://www.um.dk/NR/rdonlyres/8663D118-3A23-4E11-B286-C1F47BC582F3/0/HRandAEMultipurpose.pdf (retrieved 23 July 2008).
Proclamation of Teheran Proclaimed by the International Conference on Human Rights at Teheran on 13 May 1968, U.N. Doc. A/CONF. 32/41 at 3. (1968) available at http://www.unhchr.ch/html/menu3/b/b_tehern.htm.
Reidel E., Will M. Human Rights Clauses in External Agreements of the EC. In: The EU and Human Rights—Alston P., ed. (1999) Oxford: Oxford University Press.
Robinson M. Key Note Address to the Dublin Workshop 26 April 2008, cited in the OECD DAC HRTT. In: Human Rights and Aid Effectiveness: Key Actions to Improve Inter-linkages (2008) Paris: OECD Publishing. 1. Available at http://www.um.dk/NR/rdonlyres/8663D118-3A23-4E11-B286-C1F47BC582F3/0/HRandAEMultipurpose.pdf (retrieved 23 July 2008).
Robinson M., Alston P. The Challenges of Ensuring the Mutuality of Human Rights and Development Endeavours. In: Human Rights and Development: Towards Mutual Reinforcement—Robinson M., Alston P., eds. (2005) Oxford: Oxford University Press.
Salomon M. Global Responsibility for Human Rights (2007) Oxford: Oxford University Press.
Sano H.-O. Development and Human Rights. The Necessary, but Partial Integration of Human Rights and Development. Human Rights Quarterly (2000) 22(3):734–752.[CrossRef][Web of Science]
Seymour D., Pincus J. Human Rights and Economics: The Conceptual Basis for their Complementarity. Development Policy Review (2008) 26(4):387–405.[CrossRef][Web of Science]
Shihata I. Exclusion of Political Considerations in the Bank's Articles – Its Meaning and Scope in the Context of the Institution's Evolution. In: The World Bank in a Changing World: Selected Essays and Lectures (1991) Berlin: Springer.
Shihata I. Political Activity Prohibited. In: The World Bank Legal Papers (2000) Berlin: Springer. 219.
Simma B., Alston P. The Sources of Human Rights Law: Custom, Jus Cogens and General Principles. Australian Year Book of International Law (1992) 12:82–108.
Skogly S. The Human Rights Obligations of the World Bank and the International Monetary Fund (2001) London: Cavendish Press.
Stewart F., Wong M. Poverty Reduction Strategy Papers within the Human Rights Perspective. In: Human Rights Development: Towards Mutual Reinforcement—Alston P., Robinson M., eds. (2005) USA: Oxford University Press.
Swiss Agency for Development and Cooperation (SDC). Human Rights Policy: Towards a Life in Dignity; Realizing Rights of Poor People (2006) Berne: SDC. Available at http://www.deza.admin.ch/ressources/resource_de_25225.pdf (retrieved 23 July 2008).
Tomuschat C. Human Rights: Between Idealism and Realism. (2008) Oxford: Oxford University Press.
Tostensen A. The Bretton Woods Institutions: Human Rights and the PRSPs. In: Casting the Net Wider: Human Rights, Development and New Duty-Bearers—Salomon M. E., Tostensen A., Vandenhole W, eds. (2008) Antwerp: Intersentia.
Twomey P. Human Rights-Based Approaches to Development: Towards Accountability. In: Economic, Social and Cultural Rights in Action.—Baderin M.A., McCorquodale R., eds. (2007) Oxford: OUP. 45–69.
United Nations Development Group (UNDG), Executive Committee for Humanitarian Affairs (ECHA), and the Office of the United Nations High Commissioner for Human Rights (OHCHR). Action 2 Interagency Plan of Action – Strengthening Human Rights-related UN Action at Country Level. (2003) Available at http://www.un.org/events/action2/action2plan.pdf (retrieved 23 July 2008).
United Nations Development Programme (UNDP). Human Development Report 2000: Human Rights and Development. (2000) Available at http://hdr.undp.org/en/reports/global/hdr2000/ (retrieved 23 July 2008).
United Nations Development Programme (UNDP). Rights Based Approach to Development Programming in the UNDP – Adding the Missing Link. (2001) Available at http://www.undp.org/governance/docs/HR_Pub_Missinglink.pdf (retrieved 23 July 2008).
United Nations Development Programme (UNDP). Human Rights in UNDP: Practice Note. (2005) New York: UNDP. Available at http://www.undp.org/governance/docs/HRPN_English.pdf (retrieved 23 July 2008).
United Nations. The Human Rights Based Approach to Development Cooperation: Towards a Common Understanding among UN Agencies. (2005) Available at http://www.crin.org/hrbap/index.asp?action=theme.docitem&item=4689 (retrieved 23 July 2008).
United Nations. Report of the Working Group on Harmonisation of Working Methods of Treaty Bodies. (2007) a. dated 9 January 2007. Available at www.unhchr.ch/tbs/doc.nsf/898586b1dc7b4043c1256a450044f331/ b56b719684cb837ec12572800050cc29/$FILE/G0740045.doc (retrieved 23 July 2008).
United Nations. Report on Working Methods of the Human Rights Treaty Bodies Relating to State Party Reporting Processes: Note by the Secretariat HRI/MC/ 2007/4. (2007) b. dated 11 June 2007. Available at http://www2.ohchr.org/english/bodies/icm-mc/docs/hri_mc_2007_4.doc (retrieved 23 July 2008).
Uvin P. Human Rights and Development (2004) Bloomfield: Kumarian Press.
Wood B., Kabell D., Sagasti F., Muwanga N. Synthesis Report on the First Phase of the Evaluation of the Implementation of the Paris Declaration. (2008) Ministry of Foreign Affairs of Denmark. Available at http://www.diis.dk/graphics/Subweb/paris_evaluation_web/index.htm (retrieved 23 July 2008).
World Bank. WTO Obligations and Bank Policy Advice (1996) World Bank International Trade Division.
World Bank. Development and Human Rights: The Role of the World Bank (1998) Washington: World Bank.
World Bank. Operational Policy OP 4.01 on Environmental Assessment. (1999) Available at http://go.worldbank.org/XJOSA7GW00 (retrieved 23 July 2008).
World Bank. Operational Policy O.P. 1.00 on Poverty Reduction. (2004) Available at http://go.worldbank.org/0K895K0TV0 (retrieved 23 July 2008).
World Bank. World Development Report 2006: Equity and Development (2006) Washington: OUP/World Bank. passim.
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